Lessons from Prop. 8: Why We Shouldn't Put Our Civil Rights Up for a Popular Vote

This week, state legislatures in Washington and New Jersey passed same-sex marriage—but neither vote guarantees gay people the right to marry. Gay marriage opponents in Washington State, taking a cue from California's Prop. 8 back-and-forth, have vowed to collect the signatures required to put the issue on a state ballot. Meanwhile, New Jersey governor Chris Christie has promised a veto of a similar bill, saying the issue should be put to a referendum (which, in New Jersey, only the legislature can allow). A couple of weeks ago, Christie drew flak for asserting that the civil rights movement should have been put to a referendum, saying "People would have been happy with a referendum on civil rights rather than fighting and dying in the streets of the South."

As the political battles in New Jersey, Washington, and other states rage on, I'd like to draw your attention to the wise words of Newark, N.J. Mayor Cory Booker, who responded to Christie's comments in the video above:

Dear God, we should not be putting civil rights issues to a popular vote to be subject to the sentiments, the passions of the day. No minority should have their rights subject to the passions and sentiments of the majority. This is a fundamental bedrock of what our nation stands for.

Christie later apologized "for offending," but using the language of "civil rights" drove home what a referendum actually means: that if the majority of a population isn’t comfortable with ceding rights to a marginalized group, it's fair to wait until they are. If we’d waited for that point during the civil rights movement, we might still be waiting. Buzzfeed pointed out what our country would look like if each state had decided on things like slavery and civil rights issues through a popular vote, and it's not pretty.

It's tempting to welcome a referendum on a civil rights issue when the public's views are in line with your own interests—I was relieved, for instance, that Mississippi's personhood amendment was shot down by popular vote in October. Yet the principle still stands. Unless a law affects us all equally, it shouldn't be up to the biases of voters. And legislators' votes shouldn't be the last word, either. At bottom, gay marriage should be a case of "equal protection under the law"—and that's for a court to decide, not elected representatives.